Married Women and the Law in Premodern Northwest Europe

MARRIED WOMEN AND THE LAW IN PREMODERN NORTHWEST EUROPE edited by Cordelia Beattie and Matthew Frank Stevens THE BOYDELL PRESS MarriedWomenCP.indb 3 02/04/2013 21:51 © Contributors 2013 All Rights Reserved. Except as permitted under current legislation no part of this work may be photocopied, stored in a retrieval system, published, performed in public, adapted, broadcast, transmitted, recorded or reproduced in any form or by any means, without the prior permission of the copyright owner First published 2013 The Boydell Press, Woodbridge ISBN 978-1-84383-833-3 The Boydell Press is an imprint of Boydell & Brewer Ltd PO Box 9, Woodbridge, Suffolk IP12 3DF, UK and of Boydell & Brewer Inc. 668 Mt Hope Avenue, Rochester, NY 14620-2731, USA website: www.boydellandbrewer.co.uk A CIP catalogue record for this book is available from the British Library The publisher has no responsibility for the continued existence or accuracy of URLs for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate Papers used by Boydell & Brewer Ltd are natural, recyclable products made from wood grown in sustainable forests Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY MarriedWomenCP.indb 4 02/04/2013 21:51 11 MARRIED WOMEN, WORK AND THE LAW: EVIDENCE FROM EARLY MODERN GERMANY Sheilagh Ogilvie arried women in early modern Germany were affected by the law in a Mwide variety of ways – so many, in fact, that a single essay cannot hope to cover them all. The special character of women’s legal position in each German polity forces us, in fact, to pause and ask ourselves what we mean by concepts we have largely taken for granted – ‘the law’ itself and how it assigned different rights to people according to sex and marital status. In pre-Napoleonic Ger- many, this question is of immediately striking relevance. For one thing, the Holy Roman Empire of the German Nation contained a large number of sovereign territorial units – almost 2,500 when one includes the sovereign estate of Impe- rial Knights, and 384 even when these are excluded.1 Moreover, these territories were widely heterogeneous on almost every conceivable axis of comparison including their legal systems. Furthermore, in German-speaking central Europe both the law itself and its concrete implementation in daily life were affected by the co-existence of various levels of authority in each society – empire, prince, community, guild, church – so the nature of the ‘composite state’ of the Empire raises questions about the legal system, which are not easy to fit into the framework which historians have devised for other early modern European societies with a closer resemblance to modern nation-states.2 Germany is thus a good context for reflection on what we might mean by the effect of the law on the lives of married women, because it undermines so many of the ideas we have come to take for granted about what the law is, where it comes from, and how it functions. We cannot proceed to study married women and the law in Germany until we understand much more concretely what ‘the law’ meant when it derived si- multaneously from multiple levels of authority. Only by looking at how the law affected married women in practice, in specific spheres of activity in particular early modern German societies, will one begin to understand the complicated ramifications of what was meant by ‘the law’ for early modern women. In pur- 1 J. G. Gagliardo, Germany under the Old Regime, 1600–1790 (London, 1991), pp. 2–3. 2 S. C. Ogilvie, ‘The German State: A Non-Prussian View’,Rethinking Leviathan: The Eighteenth- Century State in Britain and Germany, ed. E. Hellmuth and J. Brewer (Oxford, 1999), pp. 167–202. 213 MarriedWomenCP.indb 213 02/04/2013 21:51 Married Women and the Law in Premodern Northwest Europe suit of this goal, I will concentrate my examination here on married women in the Duchy of Württemberg, a middle-sized state in southwestern Germany. I will focus primarily on how the law affected married women in one broad sphere of their lives – their economic activities. Many of the details will be specific to Württemberg, and neither here nor elsewhere in early modern Europe did women live by bread alone. But I will show how the multiple ways in which the law affected how married women could earn bread for themselves and their families in this particular society help us understand more general principles about how the law mattered to married women’s lives in early modern societies more widely. A dominant theme in the history of married women and law is the question of their legal autonomy – in the English-speaking world the question of ‘cov- erture’, in the German-speaking world the issue of Geschlechtsvormundschaft (‘gender guardianship’). This essay will argue that, important though legal autonomy was, it should not lead us to neglect other legal influences on married women. The case of early modern Germany throws into prominence two ad- ditional ways in which the law crucially circumscribed the economic options of married women, and thus their life chances and well-being: the legal privileges of guilds and other occupational associations; and the legal powers of local communities, including local church courts’ jurisdiction over the conduct of married life. The German Territory of Württemberg and the Legal Position of Married Women The Duchy of Württemberg was a principality in southwestern Germany of about half a million inhabitants (450,000 in 1600, rising to 620,000 by 1790) – what has been called a ‘German territory of the second rank’.3 Although market-oriented in many ways, Württemberg had strong non-market institutions, which enjoyed extensive legal powers and imposed quite serious legal constraints on women.4 For married women, three aspects of this legal framework were of particular importance in circumscribing their economic choices – the Württemberg version of ‘gender guardianship’; the legal privileges of guilds and other professional associations; and the legal powers enjoyed by local communities and their officials. 3 J. A. Vann, The Making of a State: Württemberg, 1593–1793 (Ithaca, 1984), p. 36; P. H. Wilson, War, State and Society in Württemberg, 1677–1793 (Cambridge, 1995), pp. 42–6. 4 For a detailed examination of these constraints, see S. C. Ogilvie, A Bitter Living: Women, Mar- kets, and Social Capital in Early Modern Germany (Oxford, 2003); S. C. Ogilvie, ‘How Does Social Capital Affect Women? Guilds and Communities in Early Modern Germany’, American Historical Review 109 (2004), 325–59; S. C. Ogilvie, ‘Women and Labour Markets in Early Modern Ger- many’, Jahrbuch für Wirtschaftsgeschichte 2004:2 (2004), 25–60; S. C. Ogilvie, ‘Guilds, Efficiency and Social Capital: Evidence from German Proto-Industry’, Economic History Review 57 (2004), 286–333; S. C. Ogilvie, State Corporatism and Proto-Industry: The Württemberg Black Forest, 1580–1797 (Cambridge, 1997), pp. 45–57. 214 MarriedWomenCP.indb 214 02/04/2013 21:51 Married Women, Work and the Law: Germany The first aspect of the law that affected married women was ‘gender guardianship’ (Geschlechtsvormundschaft). The legal system in Württemberg, as in other pre-industrial German societies, did not regard a married woman as a legal adult.5 Instead, it placed her under the guardianship of an adult male called a Kriegsvogt. This term translates literally as ‘war governor’ or ‘war overseer’: ‘Krieg’ meant ‘war’ and ‘Vogt’ was an Old High German term for an overlord who exerted guardianship or military protection as well as secular justice over a particular territory or area of responsibility.6 The obligation for a married woman to be under the legal guardianship of a Kriegsvogt meant that she did not have the legal right to sign enforceable contracts without this man’s permission, let alone to engage independently in any other legal proceedings. Every part of German-speaking Europe had some variant of gender guardianship in the early modern period and, as Figure 11.1 shows, most of them retained it until at least 1815. The medieval period had seen a limited legal emancipation of women in German legal thinking, especially with the so-called ‘Reception’ of Roman Law, overlaying (though not eradicating) the older Ger- man customary law. However, the legal emancipation of women under Roman Law had been largely resisted in Württemberg, whose Erste Landrecht (first na- tional law-code) of 1555 subjected women to unlimited male guardianship. But Württemberg was by no means unique in this regard. Rather, it was part of a much more widespread pattern that characterized almost all the Swabian, Ale- mannian, and Franconian polities of German-speaking Europe, in which both unmarried and married women remained subject to unrestricted male guardianship.7 A very similar degree of full gender guardianship for both unmarried and married women prevailed in those many parts of Germany subject to Saxon or Lübeck law, including Lübeck itself and the other great cities that used its legal system; much of Mecklenburg, Holstein, Pomerania, East Friesia, Schleswig, the Duchy of Prussia, and Prussian Poland; and a number of areas of Electoral Saxony, Lusatia, Thuringia, and Silesia.8 Somewhat milder versions of gender guardianship appear to have prevailed in eighteenth-century Prussia, parts of Thuringia, Silesia, Anhalt, Halberstadt, Magdeburg, Lauenburg, Holstein, Low- er Saxony, Westphalia, Electoral Palatinate, Tirol, and most of the south German Imperial Cities.9 However, the legal status of women varied so much from one early modern German territory – or town – to the next that even the modern expert on the German law of gender guardianship, Ernst Holthöfer, concludes that many more monographs based on much deeper archival research would be 5 E.

Load more